Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Brian S. Moore

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Trenton W. Gill

Bailey L. Box

Reminger Co., LPA

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian S. Moore,

Appellant-Plaintiff,

v.

Del Anderson,

Appellee-Defendant.

January 13, 2017

Court of Appeals Case No.

49A04-1605-CT-955

Appeal from the Marion Superior 

Court

The Honorable James A. Joven, 

Judge

The Honorable Kimberly Dean 

Mattingly, Magistrate

The Honorable Shannon L. 

Logsdon, Commissioner

Trial Court Cause No.

49D13-1502-CT-3909

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CT-955 | January 13, 2017 Page 2 of 11

Case Summary

[1] Pro-se Appellant Brian S. Moore (“Father”) appeals the denial of his motion to 

correct error, which challenged a grant of summary judgment in favor of 

Appellee-Guardian Ad Litem Del Anderson (“the GAL”) upon Father’s claim 

of intentional infliction of emotional distress arising from the GAL’s alleged 

perjury in custody modification proceedings involving Father’s children with 

Kristy Moore (“Mother”). Father presents the sole restated and consolidated 

issue of whether summary judgment was improvidently granted. We affirm.

Facts and Procedural History

[2] Father and Mother were divorced in 2009 and agreed to share the legal and 

physical custody of their children, with Father having somewhat less than equal 

parenting time. In 2010, Mother filed a petition to modify custody, seeking sole 

legal and physical custody. Father also filed a petition for modification, 

requesting equal parenting time, a modified child support order based upon 

equal parenting time, an order that the children remain in a private school, and 

a continuation of an agreed-upon restriction of the maternal grandmother’s 

visitation with the children.

[3] The parents appeared for an evidentiary hearing on September 19, 2011 and 

each testified. At the conclusion of this testimony, the trial court found

insufficient evidence for an immediate modification but expressed concern 
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about parental inability to communicate. The hearing was continued to permit 

the appointment of a GAL.

[4] On August 22, 2012, an interim hearing was conducted at which Mother 

testified that she had enrolled the children in a public school in Pendleton. The 

GAL testified and opined that this was an appropriate change of schools. The 

trial court found Mother in contempt for having made the school change 

without court authorization, but ordered that the children would remain in 

Pendleton Elementary School. Because of the distance between the parental 

homes, this necessitated a modification of parenting time. Father was to have 

the children each weekend and alternating Mondays.

[5] The previously continued evidentiary hearing, which began in September 2011, 

recommenced on February 5, 2013, after a custody evaluation and the GAL’s 

report had been filed with the court. The custody evaluator recommended that 

Mother have custody with Father having parenting time consistent with the 

Indiana Parenting Time Guidelines. The GAL, in his report, made the same 

recommendation.

[6] The hearing was continued and the trial judge sua sponte recused herself. The 

final day of the modification hearing was April 5, 2013, with a special judge 

presiding. Father proposed that the parenting time arrangement continue 

unchanged, with the exception of his giving Mother one weekend per month 

with children. 
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[7] During the custody hearing, Father took issue with three statements in the GAL

report. He strenuously challenged the GAL’s statements that Father had 

maligned attorneys and judges, that Father had cried during an interview, and 

that Father’s conduct had prompted a lockdown at Pendleton Elementary 

School. Father presented testimony that local law enforcement and school 

administration did not characterize the heightened security measures taken at 

the school as a lockdown. He also submitted into evidence a recording of his 

interview with the GAL and elicited the GAL’s admission that Father was not 

heard on the recording to malign judges and attorneys. The GAL re-iterated 

during cross-examination that Father had cried. Father moved, unsuccessfully, 

to exclude the GAL report on grounds that it contained substantial 

misrepresentations.

[8] On June 6, 2013, the trial court issued an order denying Mother’s request for 

sole physical and legal custody of the children. Parenting time was modified to 

provide that Father would have parenting time each weekend during the school 

year, except one weekend per month. Father was to have mid-week parenting 

time of no more than four hours. The order also provided that the maternal 

grandmother could have unrestricted contact with the children and Father was 

not to attend the children’s medical appointments.

[9] Father filed a motion to correct error, which was denied. He then appealed. 

See Moore v. Moore, No. 49A04-1308-DR-401 (Ind. Ct. App. May 9, 2014). The 

Court remanded the matter to the trial court for a recalculation of Father’s child 

support obligation. With respect to the parenting time modification, 
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grandparent access, and medical appointment restriction, the Court affirmed 

the trial court’s order. Slip op. at 5-6. Father sought transfer to the Indiana 

Supreme Court, which was denied on November 20, 2014.

[10] On February 5, 2015, Father filed a complaint against the GAL, Child 

Advocates, Inc., and attorney Cynthia Dean (“Dean”). His claim against the 

GAL was one of intentional infliction of emotional distress;1 he asserted that 

the GAL had committed perjury in retaliation for Father’s filing a disciplinary 

complaint against Dean. According to Father’s complaint, his overnights with 

his children had been reduced from 182 to 110 per year, increasing his child 

support obligation. Allegedly, Father had expended over $4,300.00 to pay for 

transcripts and appellate filing fees and had lost work hours. He requested 

unspecified monetary damages. 

[11] On April 6, 2015, the defendants filed a motion for summary judgment. At the 

conclusion of a hearing conducted on May 11, 2015, summary judgment was 

granted in favor of Dean and Child Advocates, Inc. With regard to the claim 

against the GAL, the trial court concluded that Indiana Code Section 31-17-6-8, 

providing immunity to a GAL for professional conduct, does not immunize 

gross misconduct. The trial court reasoned that the allegation of perjury alleged 

 

1 Although Father’s complaint is not a model of clarity, in open court he described his claim as one of 

“intentional infliction of emotional distress because they knew that I was self-employed.” (Tr. at 34.) 
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gross misconduct and presented a factual issue not resolved by the sparse 

designated materials. 

[12] On September 11, 2015, the GAL filed a second motion for summary judgment

and his designation of materials, including materials from the custody 

proceedings and appeal. At the hearing conducted on January 4, 2016, the 

GAL argued that the issue of his credibility had been determined in prior 

proceedings, specifically, the custody modification hearing and appeal. On 

February 22, 2016, the trial court granted summary judgment to the GAL on 

grounds of issue preclusion.2

[13] Father filed a motion to correct error, which was denied. This appeal ensued.

Discussion and Decision

[14] Generally, we review a trial court’s ruling on a motion to correct error for an 

abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. 

App. 2010), trans. denied. However, to the extent the issues raised on appeal are 

purely questions of law, our review is de novo. Id.

 

2

Issue preclusion, or collateral estoppel, bars subsequent re-litigation of the same fact or issue where that fact 

or issue was necessarily adjudicated in a former lawsuit and that same fact or issue is presented in a 

subsequent lawsuit, even if the second adjudication is on a different claim. National Wine & Spirits, Inc. v. 

Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012). There are three requirements for application: (1) a 

final judgment on the merits in a court of competent jurisdiction; (2) identity of the issues; and (3) the party to 

be estopped was a party or the privity of a party in the prior action. Id.
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[15] Here, the motion to correct error challenged a grant of summary judgment. 

Our supreme court has set out the applicable standard of review on summary 

judgment as follows:

We review summary judgment de novo, applying the same 

standard as the trial court: “Drawing all reasonable inferences in 

favor of ... the non-moving parties, summary judgment is 

appropriate ‘if the designated evidentiary matter shows that there 

is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.’” Williams v. 

Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A 

fact is ‘material’ if its resolution would affect the outcome of the 

case, and an issue is ‘genuine’ if a trier of fact is required to 

resolve the parties’ differing accounts of the truth, or if the 

undisputed material facts support conflicting reasonable 

inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to 

“demonstrate [ ] the absence of any genuine issue of fact as to a 

determinative issue,” at which point the burden shifts to the nonmovant to “come forward with contrary evidence” showing an 

issue for the trier of fact. Id. at 761-62 (internal quotation marks 

and substitution omitted). And “[a]lthough the non-moving 

party has the burden on appeal of persuading us that the grant of 

summary judgment was erroneous, we carefully assess the trial 

court’s decision to ensure that he was not improperly denied his 

day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 

916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks 

omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

[16] Father has alleged that the GAL committed perjury when he “fabricated and 

provided false evidence in a written report,” and “fabricated and presented false 
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testimony in a hearing for a custody modification.” (App. at 28.) Specifically, 

in his written report, the GAL had used the term “lock-down” to characterize a 

heightened-security event at the children’s school – occasioned by Father’s 

warning to “be ready” because he claimed to be “coming back with force.” 

(Amended App. at 30.) Other witnesses denied that the heightened security 

measures – extra police patrol and school staffing at the door – amounted to a 

lock-down. Also, the GAL had claimed that Father had flowing tears, and had 

used such terms as “crooks, liars, thieves, or belly-crawlers” to describe lawyers 

and judges. (App. Vol. 3 at 34.) However, the derogatory references were not 

heard on Father’s recording of his interview with the GAL. According to 

Father, the rendering of demonstrably false testimony amounted to intentional 

infliction of emotional distress.

[17] In Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991), our supreme court defined 

the tort of intentional infliction of emotional distress as conduct by “one who by 

extreme and outrageous conduct intentionally or recklessly causes severe 

emotional distress to another.” The intent to harm the plaintiff emotionally 

constitutes the basis for the tort, and it is found only where the conduct exceeds 

all bounds typically tolerated by a decent society and causes mental distress of a 

very serious kind. Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). 

The elements of the tort are that the defendant: (1) engages in extreme and 

outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe 

emotional distress to another. Id.
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[18] In Bradley v. Hall, 720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999), a panel of this 

Court quoted Restatement (Second) of Torts § 46 cmt. D with approval:

The cases thus far decided have found liability only where the 

defendant’s conduct has been extreme and outrageous. It has not 

been enough that the defendant has acted with an intent which is 

tortious or even criminal, or that he has intended to inflict 

emotional distress, or even that his conduct has been 

characterized by “malice,” or a degree of aggravation which 

would entitle the plaintiff to punitive damages for another tort. 

Liability has been found only where the conduct has been so 

outrageous in character, and so extreme in degree, as to go 

beyond all possible bounds of decency, and to be regarded as 

atrocious, and utterly intolerable in a civilized community. 

Generally, the case is one in which the recitation of the facts to 

an average member of the community would arouse his 

resentment against the actor, and lead him to exclaim, 

“Outrageous!”

[19] In the appropriate case, the question of whether actions constitute “outrageous” 

behavior can be decided as a matter of law. Curry, 943 N.E.2d at 361. The 

instant matter – where the conduct at issue is the presentation of evidence in a 

courtroom where decorum was maintained and no witness was admonished –

is such a case.

[20] The designated materials indicate that Father urged the trial court to find that 

substantial misrepresentations were in the GAL report; we cannot say that the 

trial court entertained a specific allegation of willful perjury during the course of 

the custody proceedings. However, credibility determinations were necessitated

as the GAL provided testimony and documentary evidence and those written 
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and oral representations were vigorously challenged. Father presented 

witnesses to contradict the use of the term “lock-down.” He presented a 

recorded interview that did not include his use of derogatory language. The 

GAL was subjected to cross-examination on his report; he acknowledged the 

lack of recorded evidence of derogatory remarks and conceded that others did 

not find the term “lock-down” applicable. However, he did not retreat from his 

claims that there had been a heightened-security event, or that Father had cried 

and used derogatory language to describe lawyers and judges. Father asked 

that the trial court strike the GAL report for alleged substantial 

misrepresentations; the motion was denied. 

[21] In the face of conflicting evidence, the trial court exercised its role as fact-finder

and accepted or rejected representations. Ultimately, Mother was granted some

portion of the modification terms she sought. Father points to the absence of

an explicit finding that the GAL’s testimony and report were credible and 

argues that the evidence may have been rejected. However, in the event that 

the GAL evidence was found lacking in credibility and not relied upon, Father 

would have suffered no harm. The modification order would have been 

produced independent of the GAL evidence. 

[22] Nonetheless, even assuming a lack of credibility on the part of a witness, this is 

not tantamount to extreme and outrageous behavior beyond the bounds of 

decency or to the gross misconduct exception to civil immunity contemplated 

by Indiana Code Section 31-17-6-8. Father has essentially launched a collateral 

attack upon the process leading to the modification order, as opposed to 
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addressing behavior beyond societal tolerance. The GAL is entitled to 

summary judgment upon the claim for intentional infliction of emotional 

distress.

Conclusion

[23] The trial court properly granted summary judgment in favor of the GAL.

[24] Affirmed.

Najam, J., and May, J., concur.